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[2021] ZAGPPHC 398
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Mumford v Minister of Police (81714/16) [2021] ZAGPPHC 398 (11 June 2021)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 81714/16
DATE:
11 June 2021
MARCHANT MIGUEL
MUMFORD
Plaintiff
V
THE
MINISTER OF POLICE
Defendant
JUDGMENT
MABUSE
J
[1]
This is a claim by the Plaintiff against the Defendant for payment of
money.
The Plaintiff is a major male person who resides at Unit
4, 22 Central Road, Sunrella Agricultural Holdings, Gauteng. The
Defendant,
who is cited in this matter in his official capacity, is
the Minister of Police of Watchuis Building, Pretorius Street,
Pretoria.
[2]
The Plaintiff’s cause of action arose on 17 May 2016 and
continued until 28
May 2016. It arose from the following
circumstances:
2.1
on or about 17 May 2017 at Muldersdrift, the Plaintiff was arrested
by members of the South
African Police Services (SAPS), who were at
all material times acting within their course and scope of employment
with the Defendant.
Although the Plaintiff claims that he was
arrested unlawfully, his claim is not based on unlawful arrest;
2.2
after his arrest he was taken to Krugersdorp police cells where he
was detained. The
Defendant admits the detention of the
Plaintiff at Krugersdorp Police Station. This still is not the
Plaintiff’s claim;
2.3
while he was detained at Krugersdorp police cells, this is the
Plaintiff’s case, he
was detained in inhuman conditions in
contravention of his constitutional rights as enshrined in s 35(2)(e)
of the Constitution
of the Republic of South Africa Act 108 of 1996
(the Constitution). According to him, there were toilet
facilities at the
said police cells, but the toilet had no door and
could not be used because the toilet pot was full of human faeces.
It is
for this reason that the Plaintiff claims that he was detained
in inhuman conditions. This claim constitutes claim 1 of his
particulars of claim (poc);
2.4
while the Defendant admits that the Plaintiff was detained at
Krugersdorp police station,
he is silent on the allegations that the
Plaintiff was held in inhuman conditions. He neither denies nor
admits the allegations;
2.5
in terms of Rule 22(3) of the Uniform Rules of Court “
every
allegation of fact in the combined summons, or declaration which is
not stated in the plea to be denied or to be admitted,
shall be
deemed to be admitted”
;
2.6
so, based on the said Rule 22(2), it is now deemed that the Defendant
has admitted the Plaintiff’s
allegation that whilst he was in
detention at Krugersdorp police cells there were toilet facilities
that could not be used; that
the toilet pot was full of human faeces
and that the toilet had no door;
2.7
the evidence of the Plaintiff with regards to the toilet facilities
was not challenged during
cross-examination.
[3]
The Plaintiff was conveyed in the police van from Krugersdorp police
cells to Nelspruit
Police Station where he arrived after dark.
At Nelspruit Police Station he was again detained in the police
detention cells
for the whole night.
[4]
Similarly, in the cells of this police station there were toilet
facilities.
But the toilet next to which he slept the whole
night was full of human faeces and smelling. If one of the
inmates had to
use the toilet facility, the others had to look away.
This is the Plaintiff’s evidence. It is the Plaintiff’s
case that these conditions were inhuman.
[5]
Again these allegations were not disputed by the Defendant nor was
the Plaintiff’s
evidence about these conditions at Nelspruit
police cells challenged. So, these averments are deemed, in terms of
the said Rule
22(3), to have been admitted by the Defendant. In my
view, the Plaintiff has made out a good case for the relief that he
seeks
in respect of claim 1.
CLAIM 2
[6]
The allegations in respect of claim 2 were that on or about 17 May
2016 and at Muldersdrift
the Plaintiff was assaulted by the police
officers in the following manner:
6.1
he was handcuffed, extremely tight and violently at his wrists and
lifted in the air by
the handcuffs which resulted into injuries to
his wrist;
6.2
he was violently pushed against a motor vehicle.
[7]
The Plaintiff’s second claim did not enjoy the support of his
evidence.
In his testimony the Plaintiff testified that:
“
They
first handcuffed me and thereafter threw me into the back of the
motor vehicle.”
No mention
is made that he was handcuffed tightly and violently at his wrists;
no mention is made that he was lifted into the air
by his handcuffs
and finally, no mention is made that because of being lifted into the
air by the handcuffs he sustained any injuries.
Finally, he
never testified that he was pushed against the motor vehicle.
[8]
During cross-examination he told the Court that he did not go to the
doctor because
he was in detention. He told the Court
furthermore that when he was released on 20 May 2016 the injuries had
disappeared.
[9]
Neither of the witnesses who testified in his case supported his
case. In the
premises his second claim cannot succeed.
CLAIMS 3 AND
4
[10] The
allegations in respect of claim 3 were that:
10.1 on or about 20
May 2016 the Plaintiff had to incur legal costs to have legal
representation at the Nelspruit
Magistrates Court;
10.2 in respect of
claim 4 it was alleged by the Plaintiff in his poc that after the
Plaintiff was released from
police custody in Nelspruit, he had to
incur travelling expenses to travel back from Nelspruit to Sunrella
Agricultural Holdings,
Gauteng;
10.3
in terms of our law, the claims for legal fees and travelling
expenses must be properly vouched. There
must be documentary
proof of money or expenses incurred by the Plaintiff. These
claims cannot succeed because the Plaintiff
has failed to
substantiate them. He has failed to submit proof that he has
paid the legal fees of R101,000.00 he is claiming
in respect of the
legal fees. He has also failed to submit documentary proof that
he paid R10,000.00 in respect of his travelling
expenses from
Nelspruit to Sunrella AH, Gauteng.
[11]
Claims 3 and 4 of the Plaintiff are predicated on the
lex aquilia
,
whose purpose is to admit the recovery of pecuniary loss. The
purpose of the aquilian action, such as the ones that the
Plaintiff
has put up in claims 3 and 4, is to recover compensation for the
pecuniary loss sustained,
in casu
, by the Plaintiff.
There are three essentials of liability that the Plaintiff must
establish to be successful with an aquilian
claim. Firstly, he
must prove a wrongful act; secondly, he must show pecuniary loss
resulted to him, and thirdly, he must
show fault on the part of the
Defendant. In respect of claims 3 and 4 the Plaintiff has
failed to prove that any pecuniary
loss resulted to him. To
succeed with the aquilian action the Plaintiff must prove that the
act complained of caused him
pecuniary loss. See in this regard
Union Government v Warneke
1911 AD 657
. I find support
in the words of Lord de Villiers CJ when he said the following in
Union Government v Warneke at page 662
:
“
Whatever
may have been the practice under the Roman Law, it is clear that
under the Dutch law the practice was to confine the damages
claimable
by the Aquilian law action to cases in which calculable pecuniary
loss has been sustained. Such loss must be explicitly
and
specifically proved. Such loss must be explicitly and specifically
proved….”
As I indicated
somewhere supra, a claim for damages under the aquilian action must
be properly vouched. Documentary substantiation
in respect of the
patrimonial loss is necessary.
[12]
Claim 1 is based on s 35(2)(e) of the Constitution, which states
that:
“
Everyone
who is detained, including every sentenced prisoner has the right –
(e)
to conditions of detention that are consistent with human dignity ….”
It
is of paramount importance to treat detainees with respect and
dignity and to detain them in humane conditions. It must
be
recalled that when a person is detained at a police station, he comes
there without any equipment with which to clean the police
cells, let
alone the toilet. The duty is therefore on those who have
control over the premises to ensure the cleanliness
of the police
cells, including the toilet, so that when people are detained in
there the toilet pots are clean. It is below
one’s
dignity to be incarcerated in inhumane conditions such as those
conditions described by the Plaintiff in this matter.
[13] The following apecue by Justice
O’Regan in
Dawood, Shalambi & Thomas v Minister of Home
Affairs
[2000] ZACC 8
;
2000 (3) SA 936
CC at 961 paragraph [35]
demonstrates the
centrality of dignity as protected by the Constitution:
“
Human
dignity therefore informs constitutional adjudication and
interpretation at a range of levels. It is a value that informs
the interpretation of many, possibly all, other rights. This
Court has already acknowledged the importance of the constitutional
value of dignity in interpreting rights such as a right to equality,
the right not to be punished in a cruel, inhuman, or degrading
way,
and the right to life. Human dignity is also a constitutional
value that is of central significance in the limitation’s
analysis. Section 10, however, makes it plain that dignity is
not only a value fundamental to our Constitution, it is justiciable
and enforceable right that must be respected and protected. In
many cases, however, where the value of human dignity is offended,
the primary constitutional breach occasioned may be of a more
specific right such as the right to bodily integrity, the right to
equality or the right not to be subjected to slavery, servitude or
forced labour.”
Finally, in his
writing, Human Dignity As The Normative Concept (1983) 77 American
Journal of International Law 848, 849 Schacter
wrote that:
“
Respect
for the intrinsic worth of every person should mean that individuals
are not to be perceived or treated merely as instruments
or objects
of the will of others. Dignity, on this account, sets the floor
below which ethical – and legal –
behaviour may not
fall.”
[14]
This claim is based on
actio iniuriarum
. The interest of
personality protected by the action iniuriarum are those interests:
“
Which
every man has, as a matter of natural right, in the possession of an
unimpaired person, dignity and reputation.”
Therefore, to
succeed with his
actio iniuriarum
,
the Plaintiff must show that the act complained of constitutes an
impairment of his person, his dignity, or his reputation.
In my
view, putting a man next to a toilet pot full of human faeces is a
violation of his constitutional right as enshrined in
s 35(2)(e) of
the Constitution. This meditation is not consistent with human
dignity. The real purpose of the
actio
iniuriarum
is not so much to obtain
compensation for harm done as it is to establish some right contained
in, for instance, the Constitution,
the protection of dignity and
reputation. In such a case, if the Plaintiff successfully establishes
his right, he is entitled to
nominal damages, although he proves no
loss. To succeed with his claim, the Plaintiff does not have to
prove any loss or
damnum
.
The leading case is
Edwards v Hide
1903
TS 381
at 387, in which Solomon J said
the following:
“
There
are, however, many cases where, though in form the action is one for
damages, it is really brought to substantiate and establish
some
right, and if the plaintiff succeeds in establishing his right,
though he proves no damages, he has substantially succeeded
in his
action, and the Court is therefore, bound to give judgment in his
favour for nominal damages.”
[15]
According to the writers, Neethling, Potgieter, Visser (Edited and
Translated by JC Knobel) in
the Law of Delict page 223:
“
Theoretically
a non-patrimonial loss is, unlike patrimonial loss, determined by
means of the comparative method.”
Therefore, the
comparative method used in the patrimonial loss to determine the
damages, is a necessary comparative method used
in the determination
of damages in a non-patrimonial lawsuit. A comparative test may
be defined as follows:
“
According
to the sum-formula doctrine damage consists in the negative
difference between the relevant person’s current patrimonial
position (after the event complained of) and his hypothetical
patrimonial position that would have been the current position if
the
event had not taken place. It therefore entails a comparison of
an actual current patrimonial sum with a hypothetical
current
patrimonial sum with a hypothetical current patrimonial sum- and
hence the name: sum formula doctrine.”
See
Union Government (Minister of Railways and Harbours) v Warneke.
The afore going
method for the determination of non-patrimonial damages was followed
by the Supreme Court of Appeal in
Transnet
Limited v Sechaba Photoscan Pty Ltd
2005 (1) SA 299
SCA par. [15]
when the Court had the following to say:
“
It is now
beyond question that damages in delict (and contract) are assessed
according to the comparative method. Essentially,
that method,
in my view, determines the difference, or, literally, the interesse.
The award of delictual damages seeks to
compensate for the difference
between the actual position that obtains as a result of the delict
and the hypothetical position
that would have obtained had there be
no delict. That surely says enough to define the measure.
There appears to be
no practical value in observing the distinction
between positive and negative interesse in determining the delictual
damages.”
To simplify the
formula or the comparative method of determining the damages one
must:
14.1
first determine the damages after the delict has been committed;
14.2
secondly determine the hypothetical position had the delict not
occurred.
They then subtract
14.1 – 14.2 and the difference is the amount of damages to be
awarded.
[16] The
preferable method, diverting from Transnet Ltd v Sechaba
supr
a,
is encapsulated and simplified as follows by the Appellate Division
in
Santam Versekeringsmaatskappy Bpk v Byleveldt
1973 (2) SA 146
[A.A]
as follows:
“
The
difference between the patrimonial position of the prejudiced person
before wrongful act and thereafter …
Damage is the
unfavourable difference caused by the wrongful act.”
[translation]
[17]
In my view, there exists no material difference between the two
methods. They are the same.
What was the position before
the delict must be compared with what is the position after the
delict. The difference is the
actual loss.
[18] A
claim for damages arising from the violation of a right embedded in
the Constitution is now
recognised. See in this regard
RK &
Others v Minister of Basic Education and Others Case No. 754/2018 and
1051/2018
by the Supreme Court of Appeal. Section 38 (a) of
the Constitution states that:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may
approach a Court
are:
(a)
anyone acting in their own interest;”
[19]
The next point I wish to turn my attention to is the amount of
damages to be awarded to the Plaintiff.
In determining the
amount, I will take guidance from RK & Others, the case cited in
the preceding paragraph. I have not
been referred to any
authority on the quantification of damages based on the violation of
the constitutional right. An award
of damages arising from the
violation of the constitutional right is determined in the same way
as it is done in any civil litigation.
No special award of
damages is made simply because the matter is based on the violation
of a right embedded in the Constitution.
The
boni
mores
that underpinned decisions prior
to 1994 were quite different from those currently radiating through
our society and an award that
does not give expression to
contemporary values would be unacceptable. It is not suggested
that wholesale changes ought to
be made to current practices; what is
suggested, however, is that an additional consideration must now be
effected into the quantum
decision; whether a constitutional right or
values relevant to the case, and whether it should affect the size of
the award.
Too large an award might have a chilling effect on
the exercise of fundamental rights like freedom of speech; but on the
other
hand, too small an award might not adequately express the
society’s abhorrence for infringements of a particular nature;
or infringements of core values like dignity and equality for
example, discrimination. The Courts have also not lost sight
of
the fact that a delictual award may in some instances be the
appropriate constitutional remedy for a particular type of case
and
that such awards might serve more than a narrow dual purpose.
[20]
It is normal to rely on past awards as guidance in the determination
of an amount to be awarded.
What the Court must consider in the
award of damages is the effect that being put next to a toilet pot
full of faeces has had on
the Plaintiff. Extraordinarily little
information was placed before me in that regard. In his
evidence in chief there
was no evidence at all how a pot full of
human faeces affected him. The evidence that is elicited in
cross-examination was
unhelpful in that regard. The plaintiff
tendered no evidence at all in this regard. Counsel for the Plaintiff
made no reference
to the effect of being in the presence of human
faeces in his closing argument. He referred the Court to no
authority or
judgment on quantum. Instead, he made it clear
that he left the issue of quantum in the hands of the Court.
The conclusion
I have arrived at is that no evidence has been placed
before me or based on which this Court can determine the amount to be
awarded
to the Plaintiff. In RK & Others v Minister of
Basic Education and Others
supra
,
the awards made by the Court in that matter were made based on
several factors that the Court had fully set out. Those factors
are not the only kind of factors that a Court seized with a similar
matter can consider. The factors set out in that judgment are
not
exhaustive. Every case depends on its own merits. The Court has
in that case set out the relevant factors on basis of
which it
determined the amount of damages that were awarded to the
applicants. In addition, it referred to other relevant
judgments, for instance
Hing &
Others v Road Accident Fund,
2014 (3) SA 350
WCC para [24],
where the Court considered grief and sorrow or the death of anyone
and the close relationship between the deceased and those he
left
behind.
[21]
The Court also referred to MEC, Department of Welfare, Eastern Cape v
Kate
[2006] ZASCA 49
;
2006 (4) SA 478
(SCA) in which constitutional damages were
awarded in respect of financial loss which would otherwise have not
been recovered in
terms of common law. In Kate, the SCA granted
constitutional damages equivalent to the interest which would have
been payable
on the money which had been unlawfully withheld.
There had been a serious delay in processing the application for a
disability
grant.
[22]
I have had regard to the unreported judgment of
Minister
of Safety and Security v Kevin Jafta Case Number CK310/2014
by
Pickering J of the Eastern Cape Division, Grahamstown. This was
an appeal against the judgment and order of a magistrate.
The
magistrate had made an order against the appellant, the Minister of
Safety and Security, to pay the Respondent R80,000.00 for
having
unlawfully detained the Respondent more than 88 hours without
bringing him to Court. Although the Court of Appeal
was unhappy
about “the manner in which the magistrate came to his
conclusion, it was, in my view, in the circumstances of
that case
where the Plaintiff was unlawfully detained in filthy cell for two
days, the award of R80,000.00 made by the magistrate,
although made
on the incorrect basis, is fortuitously appropriate to cover the
circumstances of the matter …”
[23]
In the said judgment Pickering J had regard to the number of cases
dealing with quantum of damages,
such as KG
Hendricks
v the Minister of Safety and Security, an unreported ECD Case Number
CA and R51/2015
and
Sibiya
v the Minister of Safety and Security [2008] ZAK 44
[2008] ZAKZHC 44
; ;
[2008] 4 ALLSA
570
which cases contain useful summary
of awards in similar such cases.
[24]
Awards made in similar cases may serve as useful guidance. It
must however be remembered
that each case must be determined on its
own merits. This Court must have in mind the warning sounded by
Nugent J
in Minister of Safety and Security v Seymour 2006(6) SA
320 (SCA) at p. 325 par [17].
where he said:
“
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The
facts of a
particular case need to be looked at as a whole and a few cases are
directly comparable. They are a useful guide
to what other
Courts have considered to be appropriate, but they have no higher
value than that.”
Now in this matter
in which the Plaintiff tendered no evidence as to the effect of being
detained in circumstances described in
his evidence, the Court can
consider the number of days during which he had to endure the
conditions. He was detained from
17 – 19 May 2016 in a
police station at Krugersdorp Police Station. On 19 May 2016 he
was transported to another police
station in Nelspruit. He was
kept one night in the police cells of the said police station still
under inhumane conditions.
In all he was detained in inhumane
conditions for three nights. In my view, the plaintiff ought to
be handsomely compensated
for his ordeal.
[25] In
Christopher Koekemoer v Minister of Police unreported case number
9326/2015
Molefe J awarded the Plaintiff the sum of R30 000.00
as general damages for his unlawful arrest on 12 August 2014,
subsequent
detention, and the resultant withdrawal of his charges on
29 September 2014. After his arrest on 12 August 2014, the
Plaintiff
was detained for a period and released at the same day at
17h30. The Judge reasoned that:
“
[16]
When assessing damages in such matters such as the present, the
evaluation of personal circumstances of the
Plaintiff, the
circumstances around the arrest and the nature and duration is (sic)
taken into account. The testimony of
the Plaintiff about his
personal experience, the conditions that prevailed in the police
cells and what effect the arrest had on
him is (sic) also taken into
account. The age of the Plaintiff is also taken into account.”
[26]
Referring to
The Minister of Safety and Security v Tyulu
2009 (5)
SA 85
SCA at para 26
she stated that:
“
The
purpose of an award of general damages is to compensate the claimant
for deprivation of personal liability of freedom as well
as the
mental anguish. The primary purpose is not so much to enrich
the claimant as it is to offer him or her some solatium
for his
injured feelings.”
[27]
I have pointed out that the Plaintiff in this matter has not
instituted any claim for unlawful
arrest and detention. This is
one distinguishing feature from the judgment of Koekemoer. The
other distinguishing feature
is the conditions of detention. Mr
Koekemoer was detained for a short period in humane conditions.
[28] In
my view, the sum of R120,000.00 is an appropriate award in the
circumstances of this case.
I therefore make the following
order:
1.
The Plaintiff’s claim against the Defendant is hereby granted.
2.
The Defendant is hereby ordered to pay the Plaintiff the sum of
R120,000.00 (One
Hundred and Twenty Thousand rand), plus costs of the
action, on a Magistrate Court Scale.
PM MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel for the Plaintiff Adv E
Lebeko
Instructed
by: Coetsee Attorneys
Counsel for the Defendant: Adv M
Rantho
Instructed
by: The State Attorney
Date on the trial roll before Mabuse
J: 8-10 February 2021
Date of the judgment: 11 June 2021